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Court of Appeal of Fiji |
IN THE COURT OF APPEAL, FIJI
[On Appeal from the High Court]
CRIMINAL APPEAL NO.AAU 126 of 2017
[In the High Court at Suva Case No. HAC 067 of 2013]
BETWEEN:
SASHI SALEN BAKAYA
Appellant
AND:
STATE
Respondent
Coram : Prematilaka, JA
Counsel: Ms. S. Ratu for the Appellant
Mr. R. Kumar for the Respondent
Date of Hearing: 27 November 2020
Date of Ruling: 30 November 2020
RULING
[1] The appellant had been indicted in the High Court of Suva on a single count of rape contrary to section 207 (1) and (2) (a) of the Crimes Act, 2009 committed on 22 December 2012 at Corbett Avenue in Nausori, in the Central Division.
[2] The information read as follows.
‘FIRST COUNT
Statement of offence
Rape– contrary to Section 207(1) and (2)(a) of the Crimes Decree No. 44 of 2009
Particulars of the Offence
Sashi Salen Bakaya on the 22
[3] After the summing-up on 28 October 2015, the assessors had unanimously opined that the appellant was guilty of the charge and in the judgment delivered on 29 October 2015 the learned trial judge had agreed with them and convicted the appellant of rape. On 30 October 2015 the appellant had been sentenced to 11 years, 11 months and two weeks of imprisonment with a non-parole period of 10 years.
[4] The appellant in person had signed an untimely application for leave to appeal against conviction and sentence on 05 June 2017 (received by the CA registry on 01 September 2017). The delay is about 01 year and 06 six months by June 2017. The appellant had filed an application to abandon his sentence appeal in Form 3 on 03 April 2019. Legal Aid Commission had subsequently filed papers seeking enlargement of time, amended grounds of appeal against conviction and written submissions on 07 August 2020. The state had responded by its written submission on 27 November 2020.
[5] Presently, guidance for the determination of an application for extension of time within which an application for leave to appeal
may be filed, is given in the decisions in Rasaku v State CAV 001, of 2009: 24 April pril 2013 [2013] FJSC 4 Kumatate; Sinu v State CAV0001 of 2009: 2ust 2012&2012 [2012] FJSC 17.
[6] In Kumar&#/b>the Supreme Court held
‘[4] Appellate courts examine five factors by way of a principled approach to suplications. Those factors are:
(i) The reason for the failure to file withinithin time.
(ii) The length of the delay.
(iii) Whether there is a ground of merit justifying the appellate court's consideration.
(iv) Where there has been substantial delay, nonetheless is there a ground of appeal that will probably succeed?
(v) If time is enlarged, will the Respondent be unfairly prejudiced?
[7] Rasaku the Supreme Court fu heer held
‘These factors may not be necessarily exhaustive, but they are certainly convenient yardsticks sess the merit of an application for enlargement of time. Ultimately, it is for the court turt to uphold its own rules, while always endeavouring to avoid or redress any grave injustice that might result from the strict application of the rules of court.’
[8] The remarks of Sundaresh Menon JC in Lim Hong Kheng v Public Prosecutor [2006] SGHC 100 shed some more light as to how the appellate court would look at an application for extension of time to appeal.
‘(a)........
(b) In particular, I should apply my mind to the length of the delay, the sufficiency of any explanation given in respect of the
delay and the prospects in the appeal.
(c) These factors are not to be considered and evaluated in a mechanistic way or as though they are necessarily of equal or of any
particular importance relative to one another in every case. Nor should it be expected that each of these factors will be considered
in exactly the same manner in all cases.
(d) Generally, where the delay is minimal or there is a compelling explanation for a delay, it may be appropriate to subject the prospects
in the appeal to rather less scrutiny than would be appropriate in cases of inordinate delay or delay that has not been entirely
satisfactorily explained.
(e) It would seldom, if ever, be appropriate to ignore any of these factors because that would undermine the principles that a party
in breach of these rules has no automatic entitlement to an extension and that the rules and statutes are expected to be adhered
to. It is only in the deserving cases, where it is necessary to enable substantial justice to be done, that the breach will be excused.’
[9] Sundaresh Menon JC also observed
‘27......... It virtually goes without saying that the procedural rules and timelines set out in the relevant rules or statutes are there to be obeyed. These rules and timetables have been provided for very good reasons but they are there to serve the ends of justice and not to frustrate them. To ensure that justice is done in each case, a measure of flexibility is provided so that transgressions can be excused in appropriate cases. It is equally clear that a party seeking the court’s indulgence to excuse a breach must put forward sufficient material upon which the court may act. No party in breach of such rules has an entitlement to an extension of time.’
[10] Under the third and fourth factors in Kumar, test for enlargement of time now is ‘real prospect of success’. In Nasila v State [2019] FJCA 84; AAU0004.2011 (6 June 2019) the Court of Appeal said
‘[23] In my view, therefore, the thld for enlargemengement of time should logically beb>higher than than that of leave to appeal and in order tain enlargemergement or extension of time ppellust satisfs this chis court that his appeal not only has ‘merits’ and would prod probably succeed but also has a
̵real ect of successss’
Lengthength of d of delay
[11] The delay is about 01 year and 06 months which is very substantial. Inu>Qarasaumaki v State [2013] FJCA 119; AAU0104.2011 (28 February 2013) even a delay of 3 ½ months had been considered significant.
[12] In Nawalu v State [2013] FJSC 11; CAV0012.12 (28 August 2013) the Supreme Court said that for an incarcerated unrepresented appellant up to 3 months might persuade
a court to consider granting leave if other factors are in his or her favour and observed.
‘In Julien Miller v The State AAU00 (23rd October 2007) B07) Byrne J considered 3 months in a criminal matter a delay period
which could be considered reasonable to justify the court grantinve. Tpellant in that case was 11½ months late ande and leav
leave was refused.’
[13] Faced with a delay of 03 years in Khan v te;#160; [160; [2009] FJCA 17; AAU0006.2008 (13 October 2009) Pathik J observed that ‘There are Rules govertime peal.appellant thinks that he can appeal anything he likes. He has been ill- ill-advisadvised byed by inmate in the prison. The court cannot entertain this kind of application’
[14] I also wish to reiterate the comments of Byrne J, in Julien Miller v The State AAU0076/07 (23 Octobe7) tha) that
‘... that the Courts have said time and again that the rules of time limits must be obeyed, otherwise the lists of the Courts
would be in a state of chaos. The law expeitigants and would-be appelappellants to exercise their rights promptly and certainly,
as far as notices of appeal are concerned within the time prescribed by the relevant legislation.’
[15] Therefore, delay alone may be capable of defeating the appellant’s appeal if that is the only consideration.
[16] The appellant’s excuse for the delay is that he had expected his trial lawyers to lodge an appeal but later came to know that no appeal had been tendered. Thereafter, with the assistance of an inmate he had filed his appeal in person. There is no material to support that the appellant had ever instructed his trial lawyers from the Legal Aid Commission to appeal against his conviction and sentence. In fact there is no mention to that effect at all in the late appeal he had filed in person. Moreover, there is no explanation given why the appellant had to wait 1 ½ years to realize that no appeal had been filed.
[17] In Qarasaumaki the Court of Appeal said
‘[4] ..... The Notice is late by 3 ½ months and the reason for the delay is that the applicant was unaware of the statutory 30–day appeal period. The delay is significant and the applicant's ignorance of the law and its procedures is not a good excuse (Rasaku's case a]).
[18] Therefore, I am not convinced at all of the reason for the delay given by the appellant and he hassatisfactorily explained the delay in lodging his appeal.
Merits of the athe appeal
[19] In the State v Ramesel (AAU 2AAU 2 of 2002: 15 November 2002) this Court, when the delay was some 26 months, stated (quoted in Waqa v State [2013] FJCA 2; AAU62.2011 (18 January 2013) that delay alone will not decide the matter of extension of and the court would considensider the merits as well.
"We have reached the conclusion that despite the excessive and unexplained delay, the strength of the grounds of appeal and the absence of prejudice are such that it is in the interests of justice that leave be granted to the applicant."
[20] Therefore, I would proceed to consider the third and fourth factors in Kumar regarding the merits of the appeal as well in order to consider whether despite the substantial delay and want of an acceptable explanation, still the prospects of his appeal would warrant granting enlargement of time.
[21] Grounds of appeal against conviction urged on behalf of the appellant are as follows.
(i) ‘THE Learned Trail Judge erred in law and in facts by not directing himself and the assessors on how to approach the alibi defence raised by the Appellant, thereby causing substantial miscarriage of justice.
(ii) THE Learned Trial Judge erred in law and in facts by not directing the assessors and himself on recent complaint and its purpose when considering the credibility of the complainant.
[22] The trial judge had summarised the evidence of the complainant, aged 13 and the appellant’s position (who was the complainant’s mother’s sister’s husband) as follows in the summing-up.
[35] Evidence of the cinalainant, M.R.
(i) It is her evidence that she was born on 9th March 1998 and was residing at Corbett Avenue her mother. She has studied up to class
8 and given up education due to lack of financial cial support. The Accused is married to her mother's sister.
(ii) On 22nd December 2012 she slept on the mattress laid on the floor of the sitting area of her house. House itself is a small one
with one bedroom. She had gone to sleep around 9.00 p.m. with her sisters two small children. Her mother and sister were drinking grog at the Accused's house. She was woken up when she felt the Accused on top of her inside the mosquito net. He had closed her mouth. Removed her panties and
inserted his penis into her vagina. She had not consented.
(iii) She identified the Accused from the light of the candle kept on a 2 feet high cupboard. It was located about two steps form
the place she had slept. During cross examination she admitted no light came to the place where she slept.
(iv) Then one of the small children started crying and the Accused wanted M.R. to go to the bed room. She refused. Then the Accused went away. She had thereafter she came out of the house and told what happened to a police officer Saula. Then she was taken to Nausori Police
Station and statement was taken. She was also produced before a Doctor.
(v) On 21st March 2013 she had signed letter prepared by the Accused and his family and the letter meant to "solve case". Wife of
the Athe Accused had talked to her mother and she was not consulted. Some payment of money was also discussed. She had not complained
to Police of this interference.
[36] Evidence of Boletawala
(i) This witness is also related to M.R. and on 22nd December 2012 at about 12.30 a.m., haattended his brother's birthday party he had come to accompany his uncle who lived close tose to M.R.'s house.
(ii) d seen the Accused coming bing behind her house. Two or four minutes later M.R. too came out of front door of the house crying. She said the Accused had held her tightly and forcefully.
(iii) He and uncle had then alerted Saula, a police officer, who questioned and later arrested the Accused.
[37] Evidence ofSalome Daunivaunivalu
(i) This medical ss had exam examined the complainant on 23rd December 2012 at 9.00 a.m. and recorded the hi as given by M.R. Her examination of the genitals of M.Rf M.R. revealed that hymen not intact. There were no acute bleeding or semen and the vagina was dry. She opined there was sign of forced entry attributed to loss of hymen. During cross examination it was clarified that M.R. could have lost her hymen on an earlier occasion. Medical report was marked as Prosecution Exhibit No. 1.
[23] The trial judge had summarised the defence evidence too as follows.
‘[39] Evidence of the Accused Sashi Salen Bakaya
(i) He says that on 22nd December 2012 he had gone to Vikash's house at about 8.00 p.m. to get a packet of grog. He had dropped him
by the main road. He had not gone to the house of M.R. and did not come behind her house. Boletawa and his uncle never questioned him. Saula has arrested him and tore his T shirt. Only at the Police he was told of the allegation of rape. He denied the allegation and
marked his statement to Police as Defence Exhibit No. 1.
(ii) He denied any knowledge of the letter signed by M.R. he is not aware even the family members have spoken about the letter.
[40] Evidef Vikash Lal
(i) His evidence is that on 22nd December 2012 at about 8.00 p.m. the Accused came for a packet of grog. They talked for a while and the accused went awaabout 9.00 p.m. His house ause and M.R.'s house are separated by another house. The police did not record his statement and he told Accused he could tell him if he is needed.
(ii) During cross examination he said that he would close the front door at 10.00 p.m. and would go to sleep and would not know if the Accused had gone past his house after 11.00 p.m. when asked whether he would do anything on behalf of his friend the witness said he is not mad and would not die for him. He further said that if he has done something wrong he would not help.
01st ground of appeal
[24] The appellant complains that the trial judge had not given an alibi direction to the assessors causing a miscarriage of justice. He has cited Mateni v State [2020] FJCA 5; AAU061.2014 (27 February 2020) in support of his contention. The law relating to directions on an alibi defence is well known in Fiji.
[25] In Ram v State [2015] FJCA 131; AAU0087.2010 (2 October 2015) the Court of Appeal said of the required direction in cases where there is a defense of alibi in the following words which were reiterated in Mateni v State (supra).
‘[29] When an accused relies on alibi as his defence, in addition to the general direction of the burden of proof, the jury (in Fiji
the assessors) should be directed that the prosecution must disprove the alibi and that even if they conclude that the alibi was false, that does not by itself entitle them to convict the accused (R v Anderson [1991] CrR 361, CA;
[26] In Bese v State [2013] FJCA 76; AAU0067.2011 (10 July 20oundaeld
>
‘[12] When an accused raiseraises alibi as his defence, in addition tion to the general direction on the burden of proof, the jury should be directed that the prosecution must disprove the alibi and that even if they conclude that the alibi was false, that does not by itself entitle them to convict the accused (R v Anderson [1991] Crim. LR 361, CA; R v ie [1995] 2 Cr Appr App R 31; R ley [1996] 1 Cr App App R 39; Rrron [1996] 2 Cr App App R 457). nly tdirections were not given, the number of rhetorical questions posed by the trial rial judgejudge in relation to the applicants' alibi, arguably the ng-uplance ance and unnd unfair to the applicants. Whether the athe alleged errors caused miscarriage of justice is for the Full Court to determine. As far as this application is concerned, I am satisfied that leave should be given to both applicants to appeal against their convictions.’
[27] However, the respondent has submitted that there was no proper alibi evidence for the trial judge to have directed the assessors. Section 150(8) of the Criminal Procedure Act 1986 (NSW) is helpful to understand what alibi evidence means. It states:
“evidence in support of an alibi evidence tending to shto show that, by reason of the presence of the accused person at a particular place or in a particular ar a palar time, the accused person was not, or was unlikely to have been, at the place lace wherewhere the offence is alleged to have been committed at the time of its alleged commission.”
[28] It appears from the evidence that according to Vikesh Lal the appellant had left his house around 9.00 p.m. and obviously Vikesh cannot account for the appellant’s whereabouts thereafter. Most importantly, even the appellant does not seem to have explained or place any evidence as to where he was after 9.00 p.m. in his evidence to show that it would not have been possible for him to commit the offence. This evidence falls short of required evidence for an alibi. Otherwise, it would have alerted the trial judge to an alibi on the part of the appellant and enabled him to give directions to the assessors accordingly. If the appellant had gone home straightway after leaving Vikesh Lal, at least his wife or the complainant’s mother who were drinking grog together at the appellant’s house would have been in a position to speak to that fact. The complainant had gone to bed around 9.00 p.m. and woken up in the night to find the appellant on top of her. According to Vikesh, his house and the complainant’s house is separated by only one house in between. Even the appellant’s house is not far away from the complainant’s house. At paragraph 65 of the summing-up the trial judge had specifically said that the case presented by the appellant was that he was in the vicinity of the house of the complainant in that night. Boletawa’s evidence proves this.
[29] The plea of alibi160;postulastulates the physical impossibility of the presence of the accused at the scene of the offence by reason of hesence at another place. The plea can, therefore, succeed only if it is shown that the accu accused was so far away at the relevant time that he could not have been present at the place, where the crime was committed.
[30] This explains why neither the prosecution, nor the defence and not even the trial judge had understood the appellant as having set up an alibi defence and it also explains why the trial judge had not given an alibi direction to the assessors and why the defence had not asked for redirections on alibi defence. Therefore, in any event technically the appellant is now barred from raising this ground of appeal as an appeal point as held in Tuwai v State [2016] FJSC35 (26 August 2016) and Alfaaz v State [2018] FJCA19; AAU0030 of 2014 (08 March 2018) and Alfaaz v State [2018] FJSC 17; CAV 0009 of 2018 (30 August 2018).
[31] Therefore, there is no real prospect of success in appeal as far as this ground of appeal is concerned.
02nd ground of appeal
[32] The appellant argues that the trial judge had failed to direct the assessors on recent complaint evidence. His complaint is based on the evidence of the complainant’s cousin Boletawa who in his evidence had said that the complainant had come out of the house from its front door crying within a couple of minutes of the appellant was seen behind her house and when asked she had told in the presence of an uncle that the appellant had held her tightly and forcefully.
[33] However, what the complainant had told in her evidence is that she had told everything to the police officer, Saula and she had not stated that she said anything to Boletawa or the uncle. Neither Saula, nor the said uncle was called by the prosecution to give evidence.
[34] Therefore, the question is whether the prosecution had led any recent complaint evidence at all. In Raj v State [2014] FJSC 12; CAV0003.2014 (20 August 2014), the Supreme Court set down the law regarding recent complaint evidence as follows.
‘[33] In any case evidence of recent complaint was never capable of corroborating the complainant’s account: R v. White/u>> (1929) 1 KB 99. At it was rwas relevant to the question of consistency, or inconsistency, in the complainant&#s conduct, and as such was a matter
going to her credibility and reliability as a witness:&ess:
[37]
[38] The complaint is not evit evidence of facts complained of, nor is it corroboration. It goes to the consistency of the conduct of the complainant with her evidence given at the trial. It goes to support and enhance the credibility of the complainant.
[39] The complaint need not disclose all of the ingredients of the offence. But it must disclose evidence of material and relevant unlawful sexual conduct on the part of the Accused. It is not necessary for the complainant to describe the full extent of the unlawful sexual conduct, provided it is capable of supporting the credibility of the complainant’s evidence.’
[35] Thus, it appears that in the absence of the complainant’s evidence that she had told Boletawa of material and relevant unlawful sexual conduct (i.e. rape) on the part of the appellant, the evidence of Boletawa that she had told him and the uncle that the appellant had held her tightly and forcefully could not constitute ‘recent complaint’ evidence of rape. In any event, what she is alleged to have told Boletawa could not amount to material and relevant unlawful sexual conduct (i.e. rape) on the part of the appellant, for holding the appellant tightly and forcefully by the appellant would not be necessarily suggestive of an act of rape.
[36] Therefore, the trial judge was not required to direct the assessors on assumed recent complaint evidence in terms of Raj v State (supra).
[37] Thus, there is no real prospect of success in appeal as far as this ground of appeal is concerned.
Prejudice to the respondent
[38] I do not see any real prejudice caused to the respondent as a result of an extension of time except the lapse of time since the commission of the offence. The delay itself is very substantial and reasons for the delay are totally unacceptable. The merits of the appeal do not favour an enlargement of time.
Order
Hon. Mr. Justice C. Prematilaka
JUSTICE OF APPEAL
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